July 31, 2013
There needs to be a direct confrontation of the attacks on the legitimacy of judicial decision making. Legitimacy is trust of the judges and courts. Legitimacy is maintained in part by building a reservoir of goodwill so that people will stand by courts when a decision is made with which they disagree. But trust is earned, not given. Simply put, improved performance of our courts is the key to establishing confidence and belief in the legitimacy of judicial decision making.
A failure to succeed in enhancing the legitimacy of court decisions imperils the judiciary. 75% of the American public thinks judges’ decisions are, to a moderate to significant extent, influenced by their political or personal philosophy₁. Of course, judges have a range of philosophical views. Judges exercise discretion, so differences of opinion among judges should be expected. But 75% of the American public also thinks judges’ decisions are, to a moderate to significant extent, influenced by their desire to be appointed to a higher court₁. This finding illustrates how profoundly at peril the public’s belief in the legitimacy of judges’ decisions is.
The strategy for enhancing the standing of courts with the people is simple. It is time for courts to commit to procedural fairness. A central tenet of procedural fairness is that litigants have a right to be listened to. The opportunity to be heard is an essential component of fairness. Litigants also have a right to understand court orders and why they were decided. The commitment cannot be stating platitudes. Courts need to regularly measure their performance on litigants feeling they were heard, being respected, understanding court orders and why they were issued.
Reasonable minds will differ about how cases should be decided or courts managed. But court opinions need to be written with respect for diversity of opinion. Both in opinions and in the management decisions in running courts, task conflict (as opposed to personality conflict) can make courts dynamic and effective. Court orders at any level can create an impression that judicial decision making is about personal or political preference. Well written court orders dispel that impression. Judges should not forget Justice Learned Hand’s admonition that the spirit of liberty is the spirit that is not too sure that it is right. In fact, all of us might benefit from the wisdom of Morris Udall who once said, “God give me the grace to make my words gentle and tender, for tomorrow I might have to eat them.”
Our nation’s courts need a new common theme—a new message and a renewed commitment to excellence. That simple message should be to adopt a litigant’s bill of rights. 100% of the time, every litigant has a right to be listened to, treated with respect and to understand why the judge or court ruled the way they did. Courts must aspire to achieve nothing less than 100% performance and measure it effectively. As scary as it may seem, judges need to be willing to be publicly accountable for fairness. There will be those who may claim that a 100% performance objective is an unattainable goal. They will say court volume is too great and the complexity of court proceedings makes it too difficult. But there are others with similar challenges:
If air traffic controllers at O’Hare airport were 99% right, everyday there would be numerous crashes throughout the year and plenty of near misses. Air traffic safety requires achieving excellence 100% each and every day. And that must be the goal of our courts.
Judge Burke is a co-founder of the Procedural Fairness website: